Victoria Toensing: Why has Mueller ignored Obama administration crimes?

The matter of Gen. Michael Flynn began with criminal conduct. But it was not committed by Flynn. The crimes were leaking the contents of classified telephone conversations between Flynn and Russian Ambassador Sergey Kislyak and revealing the identity of Flynn as a party to the conversations.

The sorry saga began with a January 12, 2017 column about the Flynn/Kislyak conversations by The Washington Post’s David Ignatius, who described his source as a “senior U.S. government official,” i.e., an Obama administration functionary. Whoever told Ignatius the fact of and substance of the eavesdropped conversations committed a felony by leaking classified information.

The second crime is publicly revealing a U.S. citizen’s identity as being a party to those conversations. When there is authorized intelligence collection of foreign officials, the identity of the U.S. person who is incidentally picked up during that collection is to be minimized (not disclosed), even within the U.S. government. Instead of the party’s name, the document substitutes “[U.S. Person].” There is a process for “unmasking”—obtaining the name of the undisclosed person--when the government official determines knowing the name is important to national security. A written request must be made to the collecting agency that is responsible for the document. Only a handful of officials are given that authority, e.g. NSA has only 20. Perhaps there was a valid need for an Obama official to know Flynn’s identity. That issue is irrelevant. Providing it to Ignatius was a crime.

In his column, Ignatius questioned whether Flynn violated The Logan Act, opining that Flynn’s discussions with Kislyak might have “undercut the U.S. sanctions.” Enacted in 1799 and last used over 150 years ago, The Logan Act prohibits (probably unconstitutionally) unauthorized U.S. citizens from negotiating with a foreign government. At the time, Flynn had been named President Trump’s national security advisor and was receiving checks as a member of the transition team. One hopes that in addition to talking to Kislyak he would also have been talking to officials from Canada, Israel, Mexico, and so on. Any thought that Flynn would be legally considered “unauthorized” to talk with foreign countries is risible.

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